Standing Committee E

[Mr. Roger Gale in the Chair]

Communications Bill

Roger Gale: I remind hon. Members that the Committee agreed this morning that proceedings up to the end of clause 27, including schedule 2, must be concluded by 5 o'clock, and not at the end of the morning sitting as is shown on the selection list.Clause 6 Duties to review regulatory burdens

Clause 6 - Duties to review regulatory burdens

Amendment proposed [this day]: No. 204, in 
clause 6, page 7, line 9, after 'secured', insert ', or may be furthered or secured'.—[Mr. Greenway.]
 Question again proposed, That the amendment be made.

Roger Gale: I remind the Committee that with this it will be convenient to take the following: Amendment No. 128, in
clause 6, page 7, line 11, at end insert— 
 '(c) to seek the views of persons providing services and facilities in relation to which OFCOM have functions on which of these functions should be subject to review.'.
 Amendment No. 3, in 
clause 6, page 7, line 16, leave out 'and'. 
Amendment No. 4, in 
clause 6, page 7, line 18, at end insert 'and 
 (c) whether the procedures for self-regulation offer adequate opportunities for public scrutiny and for reporting on those activities to OFCOM, to the Secretary of State and to Parliament as appropriate.'.
 Amendment No. 50, in 
clause 6, page 7, line 18, at end insert— 
 '(c) whether persons with sufficient commercial knowledge of the persons who may be subjected to the procedures are consulted.'.
 Amendment No. 122, in 
clause 355, page 307, line 7, at end add— 
 '(4) OFCOM's competition functions should form part of the review of regulatory burdens by OFCOM as described in section 6.'.
 New clause 2—Duty to establish and maintain Competition Board 
To move the following Clause:— 
 '(1) It shall be the duty of OFCOM to establish and maintain a committee to be known as ''the Competition Board''. 
 (2) The Competition Board shall consist of— 
 (a) a chairman appointed by OFCOM; and 
 (b) such number of other members appointed by OFCOM as OFCOM may determine. 
 (3) In appointing a person OFCOM must have regard to the desirability of ensuring that the persons appointed are experts, both users and suppliers of electronic communications, working in the industry who have a commercial knowledge of the market. 
 (4) Before appointing a person to be chairman or another member of the Competition Board, OFCOM must satisfy themselves that he will not have any direct financial or other interest which 
would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Competition Board.'.
 New clause 3—Functions of the Competition Board 
To move the following Clause:— 
 '(1) The functions conferred on the Competition Board must include, to such an extent and subject to such restrictions and approvals as OFCOM may determine, the carrying out on OFCOM's behalf of— 
 (a) functions in relation to ensuring that there is a constant process of evaluating the level of competition in the market, assessing possible moves to self-regulation, and between ex ante and ex post regulation; 
 (b) functions in relation to determining the matters to which a regulatory impact assessment should relate; and 
 (c) functions in relation to addressing and managing the issues of concurrent powers between OFCOM and the Office of Fair Trading. 
 (2) The power of OFCOM to determine the Competition Board's functions includes power to authorise the Board to establish committees and panels to advise the Board on the carrying out of some or all of the Board's functions.'.
 New clause 4—Duty to establish and maintain Economic Panel 
To move the following Clause:— 
 '(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) to establish and maintain a committee to be known as ''the Economic Panel'' to give advice to OFCOM on economic theory and practice in relation to the exercise of their functions under this Act and, in particular, in relation to the following matters— 
 (a) the nature and operation of markets for electronic networks, electronic communications services and associated facilities; 
 (b) the interests of providers of such networks, services and facilities as well as those of consumers; 
 (c) the promotion of competition between such providers; and 
 (d) economic regulatory policy. 
 (2) The arrangements made by OFCOM under this section must also secure that the Economic Panel are able, in addition to giving advice on the matters mentioned in subsection (1), to make arrangements for the carrying out of such research relevant to the giving of that advice as they think fit. 
 (3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to— 
 (a) any advice given to OFCOM by the Economic Panel; and 
 (b) any results notified to OFCOM of any research undertaken by that Panel.'.
 New clause 7—Industry consultation 
To move the following Clause:— 
 '(1) It shall be the duty of OFCOM to establish and maintain effective arrangements for consultation about the carrying out of their functions with— 
 (a) suppliers in the markets for the services and facilities in relation to which OFCOM have functions; 
 (b) suppliers in the markets for apparatus used in connection with any such services or facilities. 
 (2) The arrangements must include the establishment and maintenance of a panel of persons (in this Act referred to as ''the Industry Consultative Panel'') with the function of advising OFCOM. 
 (3) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to the views given to OFCOM by the Industry Consultative Panel. 
 (4) The members of the Industry Panel shall be appointed by OFCOM and shall comprise a chairman and such other members as OFCOM may determine.'.

Kim Howells: I was about to try to answer the question put by the hon. Member for South Cambridgeshire (Mr. Lansley). He asked whether the Deregulation and Contracting Out Act 1994 posed an obstacle to amendment No. 4. It does not pose an obstacle because the amendment deals with clause 6, which is about self-regulation, and that is not the same as contracting out in the terms of that Act. Ofcom will be able to contract out under clause 1(7). I am grateful to the hon. Gentleman for asking that question because I also know the answer to that now.
 Amendment No. 122 seeks to ensure that Ofcom's competition functions will fall within the scope of clause 6. That is not necessary because the Bill already achieves that. The competition functions are excluded from the general duties by clause 3, which ensures that those functions that can be exercised by Ofcom or the Office of Fair Trading are exercised within a consistent framework, irrespective of which body acts. The exclusion of the duties is set out in clause 356(11). However, that applies only to clause 3 duties, and there is no such exclusion for clause 6. That is why this amendment is unnecessary. 
 I turn to new clauses 2, 3, 4 and 7. New clause 2 would place Ofcom under a duty to establish a competition board. That matter was fully examined by the Joint Committee, which concluded that there was no rationale for an economic or competition board with executive functions. New clauses 2 and 3 do not make it entirely clear whether it is intended that the proposed competition board would have executive functions—as opposed to, for instance, a purely advisory role. 
 New clauses 4 and 7 apparently envisage a largely advisory role for the economic panel, and an industry panel. However, I assume that a key aim of new clauses 2 and 3 is to ensure that Ofcom gives due priority to competition and to proportionate regulation in its decisions on policy and individual cases, and that it has access to expert advice from people with relevant industry and commercial knowledge. The hon. Member for Blaby (Mr. Robathan) asked me specifically about that. I agree that Ofcom must have constant and ongoing discussions of that kind, and I fully expect it to do so. If that happens, the arrangements that we have laid down in the Bill, and the steps that have been taken so far to create Ofcom, already make satisfactory provision for that without adding unnecessary complication to the structure and operation of Ofcom by the creation of several other boards and panels. 
 It is important to bear in mind that Ofcom will not be limited to internal sources of advice and expertise, significant though those are. On the contrary, it can obtain and will be offered views and advice from a wide range of sources in industry, commerce, the academic, technical and legal worlds, and the general 
 public. Ofcom will not go about its work in secret. The Bill obliges it to consult widely on all significant proposals—not only the general principles, but the detailed content and, especially, the impact on business. Additionally, the clause requires Ofcom to publish regular statements setting out plans for the continuous review of regulatory burdens, including proposals to remove or reduce existing regulations or to replace them by self-regulation. 
 We hope and expect that a wide range of industry groups and individual firms will contribute fully to all the consultations, as happens at present.

Brian White: Does my hon. Friend accept the point made this morning that the work forces in the different areas have a key role to play and should form part of the consultations in which Ofcom indulges?

Kim Howells: Yes. I believe that the hon. Member for Blaby made the point, and probably in a different way than I will, that the work forces should do that. It has been one of the great weaknesses of British industry for a long time—I will not go on about this because we could talk about it for ever—that there is often a terrible schism between so-called top layers of management and everybody else, which sometimes includes senior managers but not the very top layers of management. It is important to try to tap the potential, skills and visions of people who are not necessarily chairmen or chief executives. I hope that we can work out ways of gathering such expertise and vision to enhance the information that Ofcom will receive about all sectors. It is an important issue.
 In telecoms, for example, BT and other operators already feed important comments and views, either independently or through bodies such as the Operators Group, into the various regulators that we will combine into Ofcom. Under the Office of Communications Act 2002, Ofcom has the power to appoint both executive and advisory committees, if that is considered to be appropriate. If it considers that it is necessary to have additional and more formal structures in the light of experience, it can create them. 
 These mechanisms will be much more effective in ensuring that Ofcom receives the benefit of up-to-date specialist, commercial and industrial advice on competition, deregulation and the carrying out of its functions than specific boards and panels. That will allow Ofcom's board and staff to carry out their functions more flexibly and to respond to developments more quickly than if they were bound by statute to maintain such bodies. 
 The new clauses are unnecessary and undesirable and I urge the Committee to reject them. However, I repeat—because you were not in the Chair at the time, Mr. Gale—that I accept in principle amendment No. 204. I ask the hon. Member for Ryedale (Mr. Greenway) to withdraw the amendment.

Andrew Lansley: I am grateful to the Minister for the constructive response that he gave to the question relating to the Deregulation and Contracting Out Act 1994. Although he said that that presents no obstacle to amendment No. 4, he offered no reason why we
 should not accept the amendment. Will he enlighten the Committee on why we should not accept the amendment?

Kim Howells: I think that I made a case against accepting any of the amendments except amendment No. 204, which I accept in principle and shall examine in future.

John Greenway: I am grateful to the Minister because at least he and I agree 100 per cent. on the two issues that I addressed. He, like me, does not think that we should accept amendment No. 4—I apologise to my hon. Friend the Member for South Cambridgeshire for that.

Andrew Lansley: If my hon. Friend and the Minister are in agreement, perhaps they will enlighten the Committee on the substantive reason why they oppose amendment No. 4.

Andrew Miller: Because you are wrong.

John Greenway: The hon. Member for Ellesmere Port and Neston (Mr. Miller) gives a reason that is not satisfactory to my hon. Friend.
 I think that I explained that I accept my hon. Friend's point. We might be able to address later the extent of self-regulatory arrangements on which Parliament and the Government may have oversight. I accept his explanation that it was not intended that the self-regulated bodies themselves should report back to Parliament and the Government, which was my initial impression after reading the amendment. Nonetheless, if we are to move down the road of self-regulation, we should allow the self-regulatory bodies to be formed, established and adopted by Ofcom before we address the extent to which their work should be a matter for parliamentary scrutiny. I hope that that gives my hon. Friend an explanation from a Conservative Member. 
Mr. Lansley indicated dissent.

John Greenway: I am sorry that my hon. Friend shakes his head.
 We are talking about the future, which is why this is so important. I shall certainly withdraw my amendment although I suspect that my hon. Friend might have views on several others. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Roger Gale: My understanding is that the amendments and new clauses debated since 10.30 am have covered substantively the matters arising from clause 6. I therefore propose to put the clause to the Committee without further debate.

Andrew Robathan: Mr. Gale, welcome back. The Minister and I were in a great deal of agreement and I especially agree with him that the work force has much to offer—

Roger Gale: Order. I thought that that was going to be a point of order. I was about to put the clause to the Committee, unless the hon. Gentleman wishes to make a case for something that has not been debated.

Andrew Robathan: We wish to complete the debate on amendment No. 128 because we want to put it to the vote.

Roger Gale: Is the hon. Gentleman saying that he wants a separate Division on amendment No. 128? It would have been helpful if he had indicated that to the Chair previously. I hope that he will be kind enough to do that in the future, but in this instance, and in order to expedite matters, I shall assist him.
 Amendment proposed: No. 128, in 
clause 6, page 7, line 11, at end insert— 
 '(c) to seek the views of persons providing services and facilities in relation to which OFCOM have functions on which of these functions should be subject to review.'.—[Mr. Robathan.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 13.

Question accordingly negatived.

Roger Gale: Just before we proceed, I should tell the Committee that I am the most mild-mannered of Chairmen, as everyone knows. I am perfectly prepared to admit a degree of levity within the Committee but it helps the Clerk to ensure that the result is correctly delivered if that levity is not extended during a Division.
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 69, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Duty to carry out impact assessments

John Greenway: I beg to move amendment No. 52, in
clause 7, page 8, line 11, after 'markets', insert 
 'or on major communications users'.

Roger Gale: With this it will be convenient to take the following: Amendment No. 5, in
clause 7, page 8, line 23, at end insert— 
 '(4A) An assessment carried out under this section shall include an assessment, as appropriate, of the impact of the proposal upon the general duties of OFCOM and, in particular, the furthering of the interests of consumers through competition as set out in section 3(1).'.
 Amendment No. 53, in 
clause 7, page 8, line 26, at end insert 
 'or are lead to believe is important for significant users'.
 Amendment No. 54, in 
clause 7, page 8, line 30, leave out 'OFCOM's opinion' and insert 
 'a reasoned opinion by OFCOM'.
 Amendment No. 56, in 
clause 7, page 9, line 6, leave out 'OFCOM's opinion' and insert 
 'a reasoned opinion by OFCOM'.

John Greenway: The clause sets out Ofcom's duty to carry out impact assessments before implementing proposals, and its duty to publish any findings from those assessments. The addition of required regular impact assessments in the Bill is positive and welcome. However, decisions about when to carry out such assessments, who to consult and to whom the information is shown are very much left to Ofcom's discretion. We think that measures should be put in place to ensure that Ofcom's decision process is transparent and not carried out in an arbitrary manner.
 It is important that not only businesses that supply electronic communications services but business users are consulted on the impact of regulation. Electronic communication tools have become an integral part of all United Kingdom businesses—although, thanks to your ruling, Mr. Gale, they are not integral to the proceedings of the Committee. Such tools represent a significant percentage of the cost base of firms. Consequently, the effect of regulation on them must be explicitly recognised. 
 I should like to explain the effect of amendment No. 52, which stands in my name and those of my hon. Friends. Under clause 7(2)(b), Ofcom, when deciding whether something that it plans to do in carrying out its functions is sufficiently important to warrant an impact assessment, must have regard to the likely impact of its proposal on persons carrying on business in the markets concerned. Subsection (2)(c) makes a similar requirement with regards to the general public. It is not clear that either definition includes major communications users. We suggest that it might be sensible to include those users in the definition for reasons I have outlined. 
 Similarly, amendment No. 53 includes the views and opinions of significant users as an important element of Ofcom's decision-making process on how impact assessments are to be carried out. The key issue is whether, and to what extent, Ofcom should consult the customers, particularly business and commercial customers, whose commercial interests may be affected significantly by any regulatory change that Ofcom may have in mind. 
 Subsection (6) requires Ofcom to provide an opportunity for representations to be made to it. It might be argued that amendments Nos. 52 and 53 are covered in that general provision. However, the requirement is restricted to the persons who, in Ofcom's opinion, are likely to be 
''affected to a significant extent''.
 Another way of trying to ensure that the views of significant business users are always sought is to place an obligation on Ofcom to give reasons why—that is to say, to give ''a reasoned opinion'', as in amendments Nos. 54 and 56, as opposed to just an ''opinion'', as it says in the Bill. I hope that the Committee will see the difference of accent. 
 In some respects, these are probing amendments, designed to place on the record the extent to which there will be proper consultation with business on the important issue of impact assessments. Businesses and business organisations are sufficiently concerned to have encouraged the amendments to be tabled. We look forward to the Minister's response.

Andrew Lansley: I wish to speak to amendment No. 5, which stands in my name and that of the hon. Member for North Devon (Nick Harvey). I shall not detain the Committee with a lengthy discussion about regulatory impact assessments, but shall point out that in subsections (4) and (5), the form that a regulatory impact assessment will take is established in rather flexible terms. In the first instance, Ofcom would be allowed to do what was deemed appropriate. Under subsection (5), however, that would be done by general guidance. The Committee might be aware, from some other context, of the way in which that guidance has developed in recent years to encompass a risk assessment, the presentation of options, including the option to do nothing, the inclusion of a competition assessment and small business impacts. However, general Government guidance on the subject of regulatory impact assessments that is promulgated by the Cabinet Office, or some other responsible body, does not, so far as I am aware, relate to the responsibilities of individual regulators, particularly utility regulators, or to Ofcom, which is a kind of converged market regulator.
 Ofcom is required to consider a pattern of general duties that includes the principle duties under clause 3(3), which it could take into account and set out, under its permissive power in subsection (4). It would not, however, necessarily do that. We have discussed the necessity of considering the general duties, particularly in the early stages, and the necessity of understanding the basis on which Ofcom would reconcile conflicts between those general duties and the benefits of transparency in the market place if it does act in that way. 
 The regulatory impact assessment was published alongside the draft Bill in order to show the benefits to industry of the introduction of a single regulator. That documents refers, for example, to the benefits of the reduction in capital costs through a reduction in regulatory risk, which would be derived directly from greater transparency about how the regulator does its job. If we can require Ofcom to be more transparent about its general duties, and if we find out how those duties would impact on decisions, or vice versa, and how that can be reconciled through the RIA, that will make for decision making which is better and is much more transparent. Amendment No. 5 would achieve that objective. It might otherwise be achieved by 
 Ofcom, but it would be a matter for regret if Ofcom did not use powers under subsection (4) to achieve it. It is better for it to be specified.

Roger Gale: Before I proceed, I would say, and I intended to inform the Committee earlier about this, that the amendments largely brace the entire content of the clause. I shall not, therefore, be minded to permit a clause stand part debate. Hon. Members might wish to contribute at this point.

Simon Thomas: I am interested in what the official Opposition and what the hon. Member for North Devon have explored through the amendments. Those matters are worthy of exploration. I have two points to put to the Minister. First, in moving his amendment the hon. Member for South Cambridgeshire couched his remarks in terms of a RIA. My understanding of clause 7 is that Ofcom is empowered to make wider impact assessments than simply RIAs across the whole range of their functions that would relate to the wider discussions that we have had, not just to its regulatory function.
 Will the Minister say more about how the impact assessment system might work? When we discussed amendment No. 176 earlier, which related to clause 7, the Minister said that he did not want to see Ofcom delay any impact assessments by consulting with, for example, the National Assembly for Wales. These amendments seek to establish another kind of consultation through the impact assessment process with significant telecommunications users and industry interests. That is important and perhaps the Minister could take this opportunity to explain that further. If there is to be a proper impact assessment, surely there must be consultation and discussion with the parties that are involved, whether it is an industry body or another body such as the National Assembly for Wales or the Scottish Parliament and involves territorial issues. Whichever way we look at the clause, it gives considerable power to Ofcom to review the impact of its work on particular areas, both geographical and sectoral. The amendments would give us an opportunity to see how such a measure pans out in reality and how the Minister sees it working. We must ensure that Ofcom's work on an impact assessment is not done in the dark and launched on an unsuspecting public or industry. I hope that the hon. Gentleman will explain the process.

Kim Howells: I will come to the points made by the hon. Member for Ceredigion (Mr. Thomas) in a moment, if I may. I wish first, however, to deal with amendment No. 5, tabled by the hon. Member for South Cambridgeshire and the hon. Member for North Devon. It would require Ofcom to include in any impact assessment that it carries out an assessment of the impact of the proposals on Ofcom's general duties, in particular the furthering of the interests of consumers through competition. I fear that that would invert the relationship between clauses 3 and 7.
 Clause 3 imposes duties to be complied with by Ofcom in carrying out all of its functions. That includes those functions that may lead to the need for an impact assessment under clause 7. Thus, anything that Ofcom proposes to do that leads it to carry out an impact assessment is subject to its duties 
 under clause 3 and could not have an impact upon them. In any event, subsection (2)(c) requires Ofcom to carry out an assessment if it would have a significant impact on the general public, which includes members of the public as consumers. 
 The hon. Member for Ryedale (Mr. Greenway) spoke to amendment No. 52. Clause 7(2)(b) is aimed at the providers of services, facilities and apparatus within the industry. The amendment would include the users of those services within the subsection. Although we agree that it is appropriate to highlight directly those most affected by regulation, such as the users of the services and facilities likely to be affected by the implementation of any proposals, they are already covered under subsection (2)(c) and any significant impact on them will be dealt with by Ofcom accordingly. 
 I turn now to the interesting points raised by the hon. Member for Ceredigion. We did not refer specifically to a regulatory impact assessment. Such a term has no statutory meaning. We have tried to keep the spirit of the IRA—RIA, not IRA! That reminds me of a friend who set up a company and asked me what I thought of its title, Ian Reekie Associates. We have tried to keep the spirit of the regulatory impact assessment, while recognising that, because of the breadth of Ofcom's functions—the point that the hon. Gentleman was making—it would be unlikely that a one-size-fits-all approach would work. To delve into a different area, I certainly expect Ofcom to take a more holistic approach to the way in which it regards the impact of its decisions. Obviously, we are worried about regulatory impact assessments, in particular, and their effect on core businesses. 
 Guidance and standards change, and good practice evolves. For example, competition assessments are now considered an integral part of an impact assessment, which is a different view from that held 10 years ago. For those reasons, we resist the amendments.

John Greenway: I am not sure that the Minister has entirely answered all our questions, but he said that it is the Government's view that business users are caught by the general public definition under subsection (2)(c). There is plenty of time for us to consult those concerned to determine whether that is satisfactory. However, in the light of what the Minister has said, I seek leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Duty to publish and meet promptness standards

John Whittingdale: I beg to move amendment No. 57, in
clause 8, page 9, line 9, after 'publish', insert ', and on an annual basis review,'.

Roger Gale: With this it will be convenient to take the following: Amendment No. 6, in
clause 8, page 9, line 16, at end insert— 
 '(2A) In relation to market power determinations under sections 75 to 79 or for a review under section 80, OFCOM shall not set a standard for completing such a determination in excess of six months, or a standard for a review in excess of four months.'.
 Amendment No. 33, in 
clause 8, page 9, line 23, leave out 'have regard to' and insert 'comply with'.
 Amendment No. 58, in 
clause 8, page 9, line 23, leave out from 'have' to end of line and insert 'due regard to the statement for the time being in force under this section with a view to compliance with the standards contained in it unless exceptional circumstances prevent this'.
 Amendment No. 59, in 
clause 8, page 9, line 23, at end insert— 
 '(4A) It shall also be the duty of OFCOM to publish each year, as soon as reasonably practicable after the end of the previous year, a report of their performance during that year in relation to the promptness standards described in the statement under subsection (1).'.
 Amendment No. 60, in 
clause 8, page 9, line 24, after 'Where', insert ', following a review under subsection (1),'.

John Whittingdale: As we said at the beginning of the debate on this Bill, Ofcom will be an extraordinarily powerful body. It is therefore all the more important that its regulatory functions should be subject to the appropriate checks and balances. It should be required to meet standards and to demonstrate that it is doing so. We therefore welcome clause 8, which lays down a clear requirement on Ofcom to act properly, to set out its policy, to keep the achievement of that policy under review, and to publish its success. All those things are welcome. The purpose of our amendments is to strengthen clause 8 a little further and to clarify it a little more.
 The amendments split into two sets. I will first talk about amendments Nos. 57, 59 and 60, which focus on the publication of the promptness standards and the review of that publication. It is fitting that Ofcom should expect timely responses from those that it regulates. It is therefore only fair that Ofcom itself should demonstrate its promptness. Amendment No. 57 would require Ofcom to review annually its statement of promptness standards and, later, to publish regular reports on how it has performed in achieving those standards. I acknowledge that clause 8(7) requires Ofcom to include a statement in its annual report on whether it has achieved its promptness standards. Amendments Nos. 59 and 60 seek to strengthen that subsection a little to provide the reassurance that a number of industries seek. 
 The second set of amendments in my name and that of my hon. Friends relates to clause 8(4). At the moment, the subsection says that, in carrying out its functions, it shall be the duty of Ofcom to ''have regard to'' the statement of promptness standards. We feel that the words ''have regard to'' are not sufficient. They provide Ofcom with a let-out to fail its promptness standards. The Bill should be strengthened. Amendment No. 33 does that by removing the words ''have regard to'' and inserting 
 the words ''comply with''. The statement therefore becomes much stronger. 
 The Minister may feel that that is expecting too much. I hope that he does not, but, in case he does, we have given an alternative formulation that makes the same point but in not quite such strong terms. Amendment No. 58 is also intended to tighten up the requirement on Ofcom to comply with its promptness standards. However, it does not impose what some may regard as an impractical obligation to comply. It requires Ofcom to comply with its promptness standards but it includes the words 
''unless exceptional circumstances prevent this.''
 I offer the Minister those alternatives. Both are designed to achieve the same thing but, if the Minister feels that he cannot go so far as to require Ofcom to comply with its promptness standards, he may, at the very least, consider amendment No. 58, which requires it to comply unless prevented by exceptional circumstances.

Roger Gale: Before we move on, I am of a mind that the amendments will permit a sufficiently wide debate on the clause for there to be no need for a stand part debate.

Andrew Lansley: I rise to support my hon. Friend, happily. [Interruption.] Given those interruptions, I should explain that I rose to support him last time and the Minister agreed, so we may go the same way. In addition, I wish to speak to amendment No. 6 in my name and that of the hon. Member for North Devon. To avoid any confusion, on this occasion, as on others, I speak directly to recommendations from the Joint Committee on which the hon. Gentleman and the hon. Members for Milton Keynes, North-East (Brian White) and for East Lothian (Anne Picking) served.
 I remind the Committee of the four recommendations made by the Joint Committee on the subject of promptness standards. First, it recommended that the specification of time limits be included in the Bill, which the Government declined to do; secondly, 
''that promptness standards . . . be determined by the Secretary of State following consultation with OFCOM and . . . interested parties, rather than by OFCOM''.
 The Government have changed the draft so that the Secretary of State has the power to intervene to set promptness standards. There are no amendments to change that and, in practice, it ought to be sufficient, so I will not dwell on the matter. 
 Thirdly, the Joint Committee recommended that 
''OFCOM be . . . under a . . . duty to account for . . . failures to meet time limits and promptness standards in its annual report.''
 In substance, that is the thrust of amendment No. 59, and I happily subscribe to that intention. Fourthly, it recommended that 
''a party aggrieved by a failure of OFCOM to determine a matter for decision in accordance with time limits or promptness standards be enabled to seek a direction by a court to OFCOM if the court is satisfied that there has been undue delay by OFCOM.''
 That recommendation is analogous to a similar provision in the Competition Act 1998 which the Government have not seen fit to enact thus far—unless the Minister tells me otherwise. 
 In their response to the Joint Committee's recommendations, the Government stated that if Ofcom sets promptness standards and fails to meet them, it 
''will be in breach of''
 its ''statutory duty.'' I do not doubt that that is true, but it does not answer the Joint Committee's question. If Ofcom were in breach of its statutory duties to publish and meet promptness standards under clause 8, would anyone who felt aggrieved in relation to Ofcom's failure to act be able to go to court to secure a direction for Ofcom to act? Is that possible? If the answer is no, the Joint Committee's objective has not been met and there is scope for a beneficial amendment. 
 The purpose of amendment No. 6 is to insert specific deadlines. In recognition of the Government's objective, which is to retain flexibility for Ofcom when possible, I have circumscribed where the Joint Committee recommended the setting of timetables. In the amendment, we focused on two specifics: the undertaking of 
''market power determinations under sections 75 to 79'',
 which we will come to later; and 
''a review under section 80'',
 the periodic market review. Whereas the Joint Committee recommended a four-month standard in relation to the setting of market power determinations, I have included a six-month standard, just to make sure that the flexibility is not too constrained and that the reasonableness of the amendment can hardly be contested. A market review should be less complex than an initial market power determination, so I have reverted to the four-month standard proposed by the Joint Committee. 
 The idea that Ofcom must have complete freedom and flexibility is somewhat contradicted by the structure of legislation in relation to market power-type decisions. In many respects, the European Commission gives itself deadlines for completion of reviews of that kind. Article 20 of the framework directive seeks from national regulatory authorities a four-month deadline for resolving disputes. We shall discuss disputes and appeals later. Disputes in relation to market power determinations of that kind, or between undertakings are relatively complex. If those reviews can be completed within four months, it does not seem unreasonable to suggest that Ofcom should be able to complete them in that time too. 
 There is a powerful industry reason for setting a standard in relation to market power determinations. One of Ofcom's most important tasks will be to conduct market power determinations to establish where there is significant market power, so that it can have the power to set conditions. The longer Ofcom does not complete market power determinations, the longer significant market power goes relatively unconstrained, other than by pre-existing licence 
 conditions. It is important that Ofcom gets on with the job. 
 The Minister might say that Ofcom will set challenging promptness standards for itself. That may be true, but let us remind ourselves that Mr. David Edmonds, the director general of Oftel, was asked when giving evidence to the Joint Committee whether the provisions of clause 6 of the draft Bill, which is analogous to clause 8 of the Bill, would affect his work at Oftel. He replied: 
''Promptness would not. I have tough targets already. We meet those targets . . . I think the promptness clause is important underpinning but in terms of how I operate at the moment it would not make a difference.''
 I shall not get into a long discussion about whether the customers of Oftel think that it makes decisions in a sufficiently timely manner, and whether the targets that are placed upon it are sufficiently challenging. My conclusion is that it is not the case in all circumstances. If Mr. Edmonds, who is to be a member of Ofcom, thinks that the standards are sufficiently challenging, it is probably time that we put something into the Bill that sorted out the targets from the outset. I recommend amendment No. 6 for that purpose.

Nick Harvey: This is an important group of amendments, and tabled together they offer a variety of ways of approaching the issue of promptness. During the deliberations of the Joint Committee, witnesses came forward time and again with the recurring complaint that existing regulators have been far too slow in dealing with cases that have been put before them. Those complaints were certainly in no small part directed at Oftel, but were not unique to Oftel. They also related to some of the broadcasting regulators, and indeed to the Office of Fair Trading, to which the sector had found itself referring things.
 Clause 8 is a welcome acknowledgement of the need for promptness standards, but as currently drafted, it frankly lacks teeth. The exchange with Mr. Edmonds to which the hon. Member for South Cambridgeshire referred demonstrates that only too clearly. It is important that there be measurement of whether Ofcom is meeting its promptness standards from time to time. It is also important that the standards be rigorous. Ofcom will expect promptness from the various industries that it regulates when they respond to its inquiries. It is only reasonable to expect similar promptness from Ofcom, which is very important. 
 The amendments would tighten requirements for Ofcom to comply with its own promptness standards without imposing an impractical obligation on it. What is good for the industry should be good for Ofcom as well. That is especially important for fast-moving industries such as telecommunications and the internet. Businesses in those industries refer complaints to Oftel at present. The complaints often relate to fundamental issues to their business such as the bundling together of packages of services where anti-competitive behaviour is alleged, or single billing where other telecoms providers are using BT lines. An aggrieved telecommunications operator could go out of business if Ofcom—or Oftel, at present—took too long to deliberate and to reach conclusions. 
 I look forward to hearing from the Minister. A menu of different ways to approach the issue is before him. I hope that we will hear that at least some of the amendments are acceptable because the issue is fundamental to Ofcom's ability to be an effective regulator of the industries.

Kim Howells: As a former Department of Trade and Industry Minister, it was often extremely embarrassing and frustrating to wait for findings and decisions to come. That is especially true of findings from one of the offices that the hon. Member for North Devon mentioned—I certainly will not repeat its name here. The cases could go on for a long time. I do not want to contradict myself but I started to understand why they took such a long time, and I shall comment on that in a moment.
 Ofcom's stakeholders and, especially, the industry need a degree of certainty about the time scales under which Ofcom will carry out its functions and any business connected with them. That is already set out in parts of the Bill. The hon. Member for South Cambridgeshire gave us the example of clause 183(5), which sets a four-month timetable for making a dispute determination, as required by article 20 of the framework directive. 
 Amendment No. 6 would set out a timetable for market power determinations. We believe that it is inappropriate to put that requirement in the Bill. As a matter of policy, we believe that setting promptness standards is an operational matter that Ofcom will understand far better than the Government or, indeed, hon. Members. It will be able to set its standards with an understanding of its resources, the urgency of each matter and the impact of not acting in a timely manner.

Brian White: A danger of allowing Ofcom to set its targets is the fact that that would reflect its resources. Pressure would not be put on Ofcom to get its resources right because it would not have to adhere to an external deadline. Introducing an external deadline would concentrate Ofcom's mind, which was what the Joint Committee was getting at.

Kim Howells: I could not agree more with my hon. Friend that that would focus the mind. As somebody who spent a long time with the DTI, I think that the overriding priority is for the regulator to reach correct and accurate decisions. Nothing is gained by taking a quick decision that is overturned on appeal or that proves ineffective in practice. I saw that happen on several occasions, and it incurred greater delay and more heartache, and several companies suffered badly as a consequence. Getting a right decision on highly complex cases that can often involve dozens of issues and many operators is not an inherently fast process. Detailed analysis of markets, costs and contract conditions is usually required, and many interests need to be consulted and taken into account.
 It may help if I explain briefly why, for market analysis, putting the timetable in the Bill could cause operational difficulties for Ofcom. Its ability to carry 
 out this work will depend largely on external factors such as its ability to obtain information. Unless analogous time limits are imposed on stakeholders, Ofcom may well not be able to meet its statutory time limits. Stakeholders will respond to requests for information in very different ways, certainly if the experience of the competition regulators is anything to go by.

Andrew Lansley: That those who are to be the subject of market power determinations might be able to frustrate the conclusion of such determinations seems to be an inherently bad reason to allow promptness standards to be more lax. Those determinations need to be completed quickly in order to restrict the operation of market power.
 I turn to whether those who sat on the Joint Committee were a bunch of amateurs. As the Minister knows, before we made this recommendation, we discussed the matter carefully with, among others, Sir Bryan Carsberg, who was a former director general of Oftel and the Office of Fair Trading.

Kim Howells: I have great respect for Sir Bryan Carsberg. His experience came through in the evidence that he gave to the Joint Committee. However, if the hon. Member for South Cambridgeshire had asked Sir Bryan whether everyone responded promptly and in the way in which we would like them to respond when the regulators approached them for information—perhaps he did ask that question—I am sure that Sir Bryan would have told him that the response can often be very tardy. As a former Minister with responsibility for competition, I know that companies will hold out until the last moment, and then come forward with the evidence accompanied by some thinly disguised threats from very heavy lawyers about where they intend to move on those issues.

Nick Harvey: Are not companies likely to respond more quickly if they know that the regulator has to deliver a verdict by a tight deadline, and that the regulator might assume the worst about that company if it does not respond quickly?

Kim Howells: No, I do not believe that. In a perfect world, that might well be true, but I think that sometimes they would rather cast shadows across the regulator than cough up the information that they have been asked to provide. Therefore, I do not share the view of the stakeholders on that matter.
 The amendments raise valid points. We have not set out the standards in the Bill. Instead, we have given that task to Ofcom so that it can reflect on what happens in practice. Subsection (1) places a duty on Ofcom to publish a statement setting out the promptness standards that they expect to meet. Subsection (7) requires it to provide a summary of the extent to which it has complied with the statement in its annual report. I am unsure what amendment No. 59, for example, would add. We have ensured that Ofcom will be publicly accountable for its record. As for requiring Ofcom to review its standards annually, we have built into this clause the capacity for it to revise the statement of promptness standards. 
 I turn briefly to compliance. We come here to the concept, which has been raised before in the Committee, of ''have regard to''. This clause places a duty on Ofcom; it cannot simply ignore its promptness standards. If it fails to have regard to the standards, the way in which it carries out its functions could be the subject of a judicial review. However, a compliance obligation would imperil the proper carrying out of its functions; in particular, enforcement action that took slightly too long would be rendered invalid. It would force all decisions of a similar kind into the same time scale, unless those fell under the exceptional circumstances that are referred to in amendment No. 58, and lead to bigger and more complicated decisions being unduly rushed. I resist the amendments.

John Whittingdale: I am disappointed by the Minister's response. He acknowledged that promptness is important and the Opposition parties feel strongly that that needs to be included in the Bill. He also made various observations on the amendments. Regarding amendment No. 6, I am always slightly fearful that if one specifies maximum time periods, those become the actual time periods. I can understand why the Minister is reluctant to accept that. However, his arguments about compliance are not wholly persuasive.
 It would not be going too far to require Ofcom to comply with its promptness standards, and doing so would indicate strongly that the Committee attached considerable importance to that matter. I accept that there might be exceptional circumstances.

Andrew Lansley: On the question of compliance, I can see why the Minister wants to retain the words ''have regard''. He has not, however, answered the Joint Committee's point about whether those who believe that there has been undue delay should be able to go to a court in order to direct Ofcom to reach a decision. It was seen fit to apply that to the OFT, although it was never brought into force. The Government seem to be evading that issue, but it would be desirable if it were included.

John Whittingdale: I do not want to make the Minister's arguments for him, but he referred to the possibility of a judicial review if there were an undue delay. That would be an option, but it seems to be somewhat like the nuclear option. There is a case for strengthening the provision at least, and making an allowance for the possibility of exceptional circumstances. I would be more inclined, for that reason, to press for amendment No. 58, rather than for amendment No. 33. Hon. Members feel strongly about that matter.
 I beg to ask leave to withdraw amendment No. 57. 
 Amendment, by leave, withdrawn. 
 Amendment proposed: No. 58, in 
clause 8, page 9, line 23, leave out from 'have' to end of line and insert 'due regard to the statement for the time being in force under this section with a view to compliance with the standards contained in it unless exceptional circumstances prevent this'.—[Mr. Whittingdale.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 10.

Question accordingly negatived. 
 Clause 8 ordered to stand part of the Bill. 
 Clause 9 ordered to stand part of the Bill.

Clause 10 - Function of promoting media literacy

Question proposed, That the clause stand part of the Bill.

John Whittingdale: No amendments have been tabled on this clause, but it will be worth while to detain the Committee briefly because the clause covers an interesting area—the duty of Ofcom to promote media literacy. We would like to explore that important issue with the Minister. What precisely does he have in mind for Ofcom and how he will bring it about? It is almost undeniable that a great deal of media illiteracy exists. I hope that something similar is not true of this Committee—although one occasionally has a faint suspicion.
 Earlier, we discussed amendments relating to the needs of disabled people. We wondered how technology—for example, closed caption subtitling—could help them. It is pretty complicated to access such technology and we must help people to understand how to do so. Some elderly people may not have a great grasp of the most recent technological developments. 
 Later, when we discuss content, I suspect that we will discuss whether material is offensive or distasteful, and how best we can prevent children from accessing such material. Technology exists for that. I use parental locks—I strongly recommend others to use them—on, for example, set top decoders. PINs are also effective in ensuring that children cannot access material that may be suitable for adults but unsuitable for very young people. However, if we are to allow choice and not censor material that is suitable for adults, we must ensure that parents understand how best to take advantage of technology to use locks or other devices. There is a genuine need to increase understanding of the capabilities of technology in the area of media literacy. 
 I do not oppose clause 10 in any way, but I would be interested to know how the Minister sees Ofcom going about its function. Will a specific area of its budget be reserved for this purpose? How will Ofcom 
 achieve these objectives, which I think we would all support? 
Michael Fabricant (Lichfield) rose—

Brian White: I appreciate the enthusiasm of the hon. Member for Lichfield (Michael Fabricant).
 When we discussed the general duties of Ofcom on Tuesday, I said that, due to my incompetence, I had not tabled an amendment to promote community media as a general duty. However, Ofcom will have a duty to promote media literacy, which will relate not only to existing media forms but to new forms as they appear. Community media is one of the most exciting new forms and I feel that Ofcom has a duty to promote it. I hope that one thing to come out of this debate will be a recognition by Ofcom's board that it has a key role in that. Clause 10 will be vital. 
 Community media covers not only radio but television. A number of pilot schemes exist up and down the country. Ofcom must have a role in presenting a range of options; it should not interpret this clause narrowly. In the White Paper, there is much about the need for people to be literate in new forms of media such as the internet. However, there are other new technologies and community media is the current one. Others will come along later and Ofcom will have a key role in their development, especially in the early stages.

Richard Allan: I echo the points made by the hon. Member for Milton Keynes, North-East about the role of community media. The duties set out in subsection (1) relate to encouraging and enabling the public to understand how the media works, and how material is put together and edited. Quite simply, the best way to understand that process is to do it. There are some good examples of that. The best way to educate people is to give them a taste of the subject.
 In my city of Sheffield, the BBC local radio station, Radio Sheffield, has on its ground floor an active community media centre, where people learn how to use the internet and create community websites that form part of the BBC website, which is the most popular website in the country and an important part of the media. Up the road, in what was the National Centre for Popular Music, a lottery-funded project that opened and then shut down rather rapidly, the ground floor is being put to good use by Sheffield Community Radio, which brings people in and shows them how radio works. It is particularly exciting that that radio station will no longer have to go off air when its temporary licence expires, because it continues broadcasting using real media across the internet. There are now good opportunities for community media, and that is by far the best way to promote media literacy.

Nick Palmer: Does the hon. Gentleman feel that the word ''community'' is defined too narrowly in amendment No. 228? Nowadays, one of the great attractions of the internet is that it makes it possible to form a non-geographical community. For example, I might feel
 that I have more in common with the hon. Gentleman than with my neighbour, who does nothing but watch football.

Richard Allan: I do not think that we are talking about any specific definition of community; we are talking about media literacy. I am not talking about amendment No. 228, which has not been selected, but about the entire clause and the appropriate response to it. I ask the Minister to respond positively, and to say that he believes that an appropriate way for Ofcom to interpret its powers under the clause is to try to generate active participants in media, as opposed to passive consumers. We do not want people to sit like couch potatoes and accept media; we want them to understand and engage with it. We now have the tools for that, and I hope that Ofcom, under clause 10, will interpret its role of promoting work with community media in the widest sense, through geographical, non-geographical, and other types of media. That is an important way that Ofcom could fulfil the obligations that have sensibly been set out.

Michael Fabricant: I simply wanted to add the question of the electronic programme guide. Sky television is to be congratulated on its development and use of such guides. I shall be curious to hear whether the Minister believes that there is a role for the electronic programming guide in promoting media literacy. I am particularly thinking of the issues raised by my hon. Friend the Member for Maldon and East Chelmsford, namely the quality of certain types of programme and whether they are suitable for certain age groups in terms of sex or violent content. Also, there is the issue of whether it should be made clear on the programme guide that subtitles are available for the hard of hearing. That harks back to our debate this morning. I feel that the electronic programme guide is the ideal medium by which clause 10 can be exercised.

Simon Thomas: I rise to support the comments of the hon. Members for Milton Keynes, North-East and for Sheffield, Hallam (Mr. Allan) regarding the ability to use community media as a tool to succeed in promoting media literacy, which is the basis of the clause. I put on record that I am grateful for the clause, which is important. It gives Ofcom a huge opportunity to reach out to the grass roots.

Roger Gale: Order. The Committee is beginning to have a bit of a weekend feel about it. Could private conversations be held outside, please?

Simon Thomas: Thank you, Mr. Gale.
 Ofcom can use community media and the function of promoting media literacy to be real to the people on the doorstep. It is over 10 years now since I helped to establish a community radio station in Ceredigion—Radio Ceredigion—which unfortunately is no longer community-owned. It was taken over by a large newspaper group. Nevertheless, it still functions and has facilities for volunteers to go in and work in local radio. My experience 10 years ago of trying to put together my own radio programmes helped to shape a considerable amount of my understanding of the media. It would be useful for Ofcom to look at such possibilities. 
 I have two concerns relating to media literacy. First, I worry that Ofcom will be a big animal and will lack the subtle touch that media literacy and community media demand. It will not have the attention span necessary to meet the concerns mentioned by hon. Members. Would it be permissible for Ofcom to work with other institutions in delivering its functions under the clause? I have in mind such institutions as Cardiff university's centre for journalism studies, which is a high-class training ground in Wales. Could Ofcom work with outside institutions to achieve its functions of promoting media literacy, rather than try to do it all itself? I am concerned that, if Ofcom keeps everything in house, and does not work with bodies that may have more experience, it will have an iron fist rather than a more subtle approach. 
 My second point was touched on by the hon. Member for Sheffield, Hallam: it is increasingly the new media that people use for community media projects, such as online and digital radio, and the streaming of real video and radio, which are not specifically covered by the clause. Will the Minister confirm that promoting media literacy includes everything to do with what we currently call the internet and whatever it may become, even though that aspect is not, strictly speaking, regulated by Ofcom? I want to be sure that the clause is drafted sufficiently widely to include those aspects.

Kim Howells: I thought that this would be a short debate, but it has turned into a long one—and very refreshing it is too.
 The hon. Member for Maldon and East Chelmsford spoke about the need for parents to understand what locking devices were available. However, it usually only took my kids about half an hour to work out how to unlock things, so I have to admit that after a while I gave up. My kids turned out to be all right, actually. 
 The hon. Member for Lichfield came up with an interesting suggestion, as usual. I am the only one in our house now who has to use the Sky zapper to get back to the main menu to find my way around the system. Every one else knows the numbers and they knock them out. [Interruption.] I do not know what my hon. Friend the Member for Rhondda (Mr. Bryant) said, but we had a discussion earlier in the week about better design. Locking elements could be incorporated into design, perhaps not on the surface of the device but in easily accessible software. 
 In response to the questions asked by the hon. Member for Ceredigion, I would certainly expect Ofcom to look for partners to work with. Some interesting projects are going on at the moment. The hon. Member for Sheffield, Hallam told us about the need for a pro-active approach, to make people aware of the possibilities that already exist. 
 I have an access radio station on my own patch—GTFM. It is in one of the poorest wards in my constituency and shares its administration with the university on the other side of the valley. It is fascinating to see the different ways in which those two communities have accessed the opportunity and, at the same time, linked up with the rest of that part of the valley. It has been an instructive experience. People 
 have learned much. They have learned that they have a voice, which they might previously have assumed was denied to them. 
 Some hon. Members asked whether there would be an iron fist approach to the issue, whether the boundaries to media literacy would be strictly determined and how such matters ought to be dealt with. I reassure the Committee that that is not the intention behind the relevant provision. Media literacy, by its very nature, must grow, expand and change with the various media that we use. 
 An important point was made at the end of the debate: we must be aware of, understand and learn about the interoperability and shading between the different media. Our use of personal computers and of the internet is part of that process. I am sure that hon. Members will agree with me that great work is being done by many of the outreach institutions of colleges, universities, and especially further education colleges, in helping people to get the degree of computer literacy that they need just to get started. 
 This is an important step forward and I am glad to hear that there is general agreement in the Committee that it should be taken forward. 
 Question put and agreed to. 
 Clause 10 ordered to stand part of the Bill.

Clause 11 - Duty to establish and maintain Content Board

Andrew Lansley: I beg to move amendment No. 7, in
clause 11, page 11, line 8, after 'OFCOM', insert— 
 '(aa) a deputy chairman appointed by OFCOM;'.

Roger Gale: With this it will be convenient to take the following:
 Amendment No. 9, in 
clause 11, page 11, line 11, after 'chairman', insert 'and deputy chairman'.
 Amendment No. 171, in 
clause 11, page 11, line 11, leave out 'a non-executive member' and insert 'non-executive members'.
 Amendment No. 172, in 
clause 11, page 11, line 12, leave out 'is not' and insert 'neither is'.

Andrew Lansley: I intend to speak to the whole group of amendments, as they are related and connected.
 The amendments relate to the composition of the content board. Committee members, especially those who were involved with the Committee that considered the Office of Communications Bill, might recall that the Government limited the membership of the Ofcom content board to six people. The Joint Committee subsequently recommended that that number should be able to be increased and the Government responded by announcing their intention to use the powers in the Ofcom Act to increase the size of the board to nine and to include a sixth non-executive member. One reason why the Joint Committee came to that conclusion was that we were made aware, not least because of the presence of Lord Pilkington, of the amount of activity—the weight of 
 scrutiny—that is required of Ofcom, and of the content board on Ofcom's behalf, in relation to standards, complaints, fairness, privacy, and so forth. For such activity to be permitted to be divorced from Ofcom would be undesirable. Ofcom has—and should have—a legal responsibility for those matters. Although such functions could be devolved to the content board, there is a risk that it could acquire a life of its own and we might end up with two regulators rather than one. In order to reduce that risk, we felt that it was desirable that at least one, and preferably two, members of the content board should be non-executive members of Ofcom and that when the content board meets, its chairman should also be a non-executive member. In order for that to happen, we should prescribe that the content board should also have a deputy chairman and that both the chairman and deputy-chairman should be non-executive members of Ofcom. Of course, neither should be the chairman of Ofcom. There is a high probability, if not a certainty, that the content board would always be chaired by a member of Ofcom. Thus, at least one member of Ofcom would have a continuing familiarity with the content board's work and would be able to speak from a position of authority on how it is approaching its decisions. 
 There are two likely risks: the content board's decisions might become progressively separate from Ofcom, or instead of there being a single integrated decision-making process Ofcom might become too much of a court of appeal because it starts to second guess the content board. Those risks must be offset and these four amendments are designed to accomplish that: the Government said that that was desirable but that it was not necessary to specify these matters in the Bill.

John Greenway: I anticipate that you, Mr. Gale, will not wish to have a clause stand part debate. Therefore, I wish to ask the Minister a question about the content board. It arises from my reading of the clause. Subsection (4) states that there is to be a person on the content board who represents
''the following parts of the United Kingdom—
(a) England,
(b) Scotland,
(c) Wales, and
(d) Northern Ireland''.
 That is sensible. 
 Subsection (5) states that the person who represents the United Kingdom should also be capable of representing 
''the interests and opinions of persons living in all the different regions of England.''
 I am unsure what kind of person that would be.

Kim Howells: That would be you, John—a Yorkshireman.

John Greenway: I am very grateful for that comment. I was not going to ask the Minister about remuneration and pension but he has now tempted me to do so: that might be a good job application to fill out.
 Subsection (6) states: 
''The validity of any proceedings of the Content Board shall not be affected by any failure by OFCOM to comply with subsection (4) or (5).''
 That begs a question: what constitutes a quorum of the content board?

Kim Howells: I was hoping that another hon. Member would rise, because I am trying to find out the answer to that question.
 These amendments would require Ofcom to appoint a non-executive member of Ofcom—other than the chairman—to be deputy chairman of the content board. I welcome the decision to designate Mr. Richard Hooper as the first chairman of that board. Currently, he is a non-executive member and the deputy chairman of the main board. 
 Subsection (7) states that the membership of the content board should predominantly consist of lay members— 
''persons who are neither members nor employees of OFCOM.''
 That lay membership is valuable; it will enable the board to be representative of many different aspects of public interest. 
 Other members of Ofcom may also be members of the content board, and I understand that Ofcom currently intends to appoint more of its members to the board. However, the Government do not believe that Ofcom should be burdened with even more detailed statutory obligations about the membership or internal structure of the content board. Ofcom should decide whether to appoint one of its members as deputy chairman or to leave that decision to their appointees on the content board. Flexibility will be crucial if Ofcom is to be effective. 
 We recognise the risk that the hon. Member for South Cambridgeshire identified of overload on the content board. I intended to make the following statement when we addressed clause 12, but instead I shall do so now: the Government intend to move an amendment that will increase Ofcom's flexibility slightly when determining the extent of the board's contribution to its work. That small flexibility was sought by Lord Currie. At present, any committee of Ofcom that is not solely advisory must include a member or employee of Ofcom. We propose to provide that any such committee that considers content matters may be formed with a member of the content board instead of a member or employee of Ofcom. That would allow Ofcom to establish a committee to consider fairness complaints, which would relieve the board of a resource-intensive task and provide a route of appeal for the remaining members of the content board. We envisage achieving that by amending the Office of Communications Act 2002 and I shall ensure that members of the Committee see the amendment in good time before we consider the relevant clause of this Bill. 
 I shall now address the question asked by the hon. Member for Ryedale about what constitutes a quorum for the content board because the answer has arrived from an unknown source. He will not be surprised to hear that that is for Ofcom to determine—
 [Laughter.]—but as the law stands, a determination committee of Ofcom must contain a board member of Ofcom or an Ofcom official. I shall speak about that further when we consider clause 12.

Andrew Lansley: I am grateful to the Minister for his response. I understand that his objective, as shown by the additional amendment to which he referred, is to provide greatly flexibility for Ofcom rather than prescribing how it will work. I think that Ofcom will have to go down the route described in the amendments in practice, but if the Government want to resist the amendments, so be it. I shall not press the matter further and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment proposed: No, 177, in 
clause 11, page 11, line 20, at end insert— 
 '(4A) In making such appointments with respect to Scotland, Wales and Northern Ireland, OFCOM must consult with the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly as appropriate.'.—[Mr. Simon Thomas.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 17.

Question accordingly negatived. 
 Clause 11 ordered to stand part of the Bill.

Clause 12 - Functions of the Content Board

John Whittingdale: I beg to move amendment No. 148, in
clause 12, page 12, line 23, at end insert— 
 '(1A) At any such time that a function has been conferred on the Board that function shall not also be exercised by OFCOM.'.

Roger Gale: With this it will be convenient to take the following: Amendment No. 13, in
clause 12, page 12, line 26, at end insert— 
 '( ) functions arising under sections 307 and 315 of this Act;'.
 Amendment No. 61, in 
clause 12, page 12, line 38, at end insert— 
 '(3A) The Content Board's functions should have sufficient regard to persons who are likely to be affected and should be limited so as not to have a major negative impact on business competitiveness.'.
 I am asked to inform the Committee that there has been a typographical error in the printing of amendment No. 13. It should read ''functions arising under sections 307 to 315 of this Act'', not ''307 and 315 of this Act''.

John Whittingdale: I do not want to spend too long on this, but it is undoubtedly true that the content board will take on responsibility for important matters that are likely to generate a lot of public controversy and interest. There is some concern that the boundaries of the content board should be properly defined.
 Amendment No. 148 would address the worry that businesses overseen by Ofcom may face a double jeopardy. If Ofcom delegates a function to the content board, it may also be considered and perhaps overruled by the main board. Clearly, the main board must have the ultimate responsibility. I am not suggesting that it should not have such power. I hope that the Minister accepts that some businesses subject to oversight by Ofcom may make their case to the content board, which is given immediate responsibility, only to find that the main board will concurrently exercise judgment. The amendment is designed to flag up the concern about businesses facing a double jeopardy. Will the Minister reassure me about such matters? 
 Amendment No. 61 is concerned about decisions that are likely to have a significant impact on various businesses. Businesses should be properly consulted and there should be no chance of the content board overreaching the powers that have been delegated to it. The Joint Committee outlined the need for further clarification of the responsibilities of the content board, but the Government said that they expected Ofcom to provide a clear statement about the board's role. We consider that that is insufficient and leaves open the possibility for arbitrary and non-transparent exercise of powers. The amendment would ensure that the content board is not able to make decisions that could have untoward and negative repercussions on companies that use content as an integral part of their commercial service offerings. Will the Minister consider that and provide reassurances for businesses that will be affected by the deliberations of the content board?

Roger Gale: Before we start the debate, I must inform members of the Committee that this group of amendments, together with amendments Nos. 36 and 37, which we shall come to next, broadly embrace the content of the clause. I invite hon. Members to raise issues now rather than later.

Andrew Lansley: I can be reasonably brief. There was a difference of view between the Government and the Joint Committee about whether we should not only specify which provisions should be the responsibility of the content board, but provide executive and determinative responsibility for the content board when clarifying its functions. I understood from the Government's response that to do so would alienate the legal responsibility from Ofcom itself, and be undesirable. The amendment is not drafted in the same form as the Joint Committee's view, but it would provide greater clarity about the functions of the content board is doing, something that the Joint Committee wanted.
 The Minister may say that the amendment would is repetitious because some of the provisions of clauses 307 to 315 are comprised within the language of clause 12(2)(a). None the less, the amendment would make clear to those who are considering the role of the content board the extent of its remit. It would be open to Ofcom to vary from that remit, but the powers of the content board would be set in a clear framework.

Michael Fabricant: On your advice, Mr. Atkinson, I wish to receive clarification from the Minister about the philosophy behind subsection (2), especially paragraph (a), which refers to the function of the board
''in relation to matters that concern the contents of anything which is or may be broadcast''.
 I raise that point because historically, as the Minister may recall, the old Independent Broadcasting Authority and, before that, the Independent Television Authority were very proscriptive about programming to be broadcast. For example, television stations had to present pilots before programmes were broadcast; and, in the early days of independent broadcasting, radio stations—even though they were making local radio programmes—had to present pilots before the IBA would approve them for transmission. 
 Since that time there has been a lighter touch. The Independent Television Commission and, in particular, the Radio Authority have been retrospective in the way in which they have considered programming for broadcast. However, given that subsection (2)(a) uses the phrase ''may be broadcast'', the Minister may wish to describe how proactive the content board should be. Should it use as light a touch as that used by the Radio Authority or the ITC; or should its use an even lighter touch? What will its philosophy be? 
 Clause 12 talks about ''electronic communications networks'', but does that phrase embrace the internet? If it does, how does the board intend to control the internet—the perennial question—when much of the source material on the internet comes from outside the United Kingdom?

Nick Harvey: I rise to speak in favour of amendment No. 13, which is a logical amendment. However, I am more interested in probing the implication and meaning of amendment No. 61, especially when it is read together with amendment No. 148. Amendment No. 61 seeks to impose a specific responsibility on the content board to protect competition. During deliberations on the Office of Communications Act and on the Second Reading of this Bill, the hon. Member for Maldon and East Chelmsford and his colleagues expressed enthusiasm for the BBC being regulated entirely by Ofcom. I, and others, have said that we might be persuaded of that in the fullness of time—specifically, when we come to charter review—if Ofcom proves itself a suitable regulator to take on that work. Were amendment No. 61 to be accepted, Ofcom could never be an appropriate body to regulate the BBC. By definition, anything done by the BBC—which has a privileged funding stream—distorts competition and impacts on
 the competitive market. I urge the hon. Gentleman to think hard about this. One day, Ofcom may be suitable to regulate all the functions of the BBC. However, amendment No. 61, when taken together with amendment No. 148, would ensure that Ofcom would never be suitable for that task.

Michael Fabricant: The hon. Gentleman has raised an intriguing point. However, he will be aware that the BBC claims to have a fair trading policy. [Interruption.] My hon. Friend the Member for South Cambridgeshire sighs with disbelief, and many of us share that disbelief. Is the hon. Gentleman suggesting that the BBC does indeed distort market policy?

Chris Bryant: Of course it does.

Michael Fabricant: There seems to be unanimity throughout the Committee that the BBC distorts the market by competing unfairly with commercial companies.

Nick Harvey: I remind the hon. Gentleman that, in its general economic functions and its trading, the BBC will, under this Bill, be regulated by Ofcom. However, we are talking specifically about content and the content board. The hon. Gentleman's party colleagues have been urging that everything that the BBC does, including content issues, should be considered by Ofcom. One day, that may be appropriate. However, if Ofcom had a slavish responsibility to promote competition, it would be unfit for the purpose. For example, when new BBC services are to be approved, the content board might end up with responsibility for them because they would be content issues: however, if it had an absolute obligation in terms of competition, it would never be able to approve any new BBC functions or services. If I were a Conservative Member, I would approach amendments Nos. 61 and 148 with caution, because they might rule out the BBC in its entirety ever being under Ofcom.

Kim Howells: As hon. Members have said, these amendments are intended to specify more closely the functions of the content board, and to constrain it. Any effect that they had would make it harder for Ofcom and its content board to do their jobs.
 Amendment No. 13 is intended to ensure that the functions of the content board include—to the extent determined by Ofcom—functions in relation to setting standards, codes and dealing with fairness complaints. Those functions fall within those that Ofcom is specifically expected to consider giving to the content board. However, it might, for example, prefer to establish, in conjunction with the content board, separate arrangements for handling code development. That should remain an option. We do not believe that it is right to over-specify how Ofcom discharges the responsibilities for which it will be held to account. 
 Amendment No. 61 would also skew the work of the content board. As we discussed in relation to clause 3, Ofcom must balance a number of factors, including its duty to promote competition, and its arrangements for the work of the content board must not upset that balance. 
 Amendment No. 148 would ensure that Ofcom and its content board do not undertake the same function. That has a superficial appeal, but it may be the case that, for example, Ofcom wishes to give the content board a function but to reserve to itself decisions with an impact beyond a particular financial threshold. That should remain possible. We anticipate that Ofcom and its content board will work to establish a memorandum of understanding—or something similar—so that their distinct roles are made clear internally and externally. 
 The hon. Member for Maldon and East Chelmsford asked whether the content board would exercise arbitrary powers. It is a central element of the Bill that the main board delegates as it sees fit to the content board. I doubt that the content board would act in an irresponsible way, but if it were to do so—such as in the way that, if I interpreted him correctly, the hon. Gentleman described—the main board will have oversight of it. I welcome the opportunity to put that on the record. 
 The hon. Member for Lichfield asked about the remit extending to the internet. It is likely to be necessary for the content board to research and advise on matters relating to the internet—notably in relation to media literacy. However, the board will be fully part of Ofcom, and it cannot have any regulatory functions or powers that Ofcom does not have. As the Bill does not provide for Ofcom to have any regulatory powers over internet content, the content board cannot have any. 
 The hon. Gentleman also asked about ''is'' or ''maybe'' broadcast. It is not intended that Ofcom should pre-censor, but it can examine journalistic methods—in particular, it can examine a complaint of unwanted infringement of privacy, as the Broadcasting Standards Commission currently does.

Michael Fabricant: I am grateful for those answers to my questions.
 In light of the Minister's comments, is it fair to say that he does not envisage Ofcom being any more prescriptive than the Radio Authority and the Independent Television Commission, because they already have a light touch?

Kim Howells: Yes. We no longer use the phrase ''light touch'', although I cannot remember why. I confirm that that is one of the Bill's central thrusts.

Andrew Lansley: I am slightly confused because the purpose of my amendment was not to try to constrain Ofcom unduly, but to leave flexibility. It was to clarify the role of the content board. If anything, the Minister has made it more difficult to understand. He seems to be contemplating that some of the issues under clauses 307 to 315 might not only not be functions conferred by Ofcom on the content board, but might be conferred by Ofcom on some other body established through Ofcom.
 Given that the content board is able to establish committees and panels under clause 12(5), surely it would be sensible to make it clear that the responsibilities under clauses 307 to 315 should, in 
 due course, be conferred upon the content board under all normal circumstances? That would help people to be clear about the respective relationships. Or is the Minister actually telling us that there is some expectation that functions may be conferred upon some other body?

Kim Howells: I regard the content board as the obvious candidate to do the tasks that the hon. Gentleman mentions. However, there is the opportunity in the legislation for Ofcom to set up committees and bodies as it sees fit if there are hybrid problems that must be examined—several have already been raised during the course of our proceedings. It may be the case that a body constituted specifically for a task may need to be set up.

Andrew Lansley: I will not go on at length: I have made my point. It would be better to be clear rather than pursue extravagant flexibility for Ofcom. It would be better to be clear about what the role of the content board is to be.

John Whittingdale: In respect of the question of double jeopardy that I raised, which is dealt with by amendment No. 148, I accept that Ofcom should have the ultimate power. I hear what the Minister says about oversight should it be necessary for the content board to act in an arbitrary manner, so I do not intend to press the amendment.
 The hon. Member for North Devon made some interesting remarks about amendment No. 61. He suggested that, were the BBC to be brought fully under the auspices of Ofcom and the amendment were to be accepted, no new services would be approved when the BBC applied to start them, because they might have an impact on the competitiveness of existing services. That is a fascinating debate. We will not have it now, but we will return to it in the course of our discussion of the Bill. 
 It is precisely because the BBC is launching a whole series of services that impact on existing commercial services that I do not think that such services should be approved. If the content board found that the BBC was going to launch a service that would replicate an existing commercial service and would pose unfair competition, it should say that that service should not be launched. That would be the result of our amendment.

Nick Harvey: In circumstances in which a decision had to be made about whether the BBC should form a new service, the question is whether that decision should be made by Ofcom, as a regulator with overwhelming responsibility towards competition—which the hon. Gentleman advances—with, perhaps a note on its desk from the Secretary of State about the cultural issues, or by the Secretary of State with a note on her desk from Ofcom about the competition implications? I suspect that the hon. Gentleman and I would fundamentally differ about the answer.

John Whittingdale: The hon. Gentleman is entirely right, we would fundamentally differ. We will have the debate later in our proceedings. I do not want to test the patience of the Chairman by having it today. The hon. Gentleman's observations about amendment No.
 61 nearly tempted me to press it. Nevertheless, having listened to the Minister, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Greenway: I beg to move amendment No. 36, in
clause 12, page 12, line 28, leave out 'broadcast or otherwise transmitted' and insert 'transmitted, whether broadcast or otherwise'.

Roger Gale: With this it will be convenient to take amendment No. 37, in
clause 13, page 13, line 43, leave out 'broadcast or otherwise published' and insert 'transmitted, whether broadcast or otherwise'.

John Greenway: I shall be as brief as I can. These are probing amendments to ascertain whether the drafting of clause 12(2)(a) and clause 13(3)(a) is ambiguous. Clause 12 requires Ofcom to delegate to the content board functions that are related to broadcast content and media literacy. Clause 13 includes a similar requirement for consumer research. It is not clear whether the intention is that the content should include anything that is either
''broadcast or otherwise transmitted by means of electronic communications networks''
 or whether the two alternatives are exclusive. 
 It is not clear whether the words 
''by means of electronic communications networks''
 are intended to refer back to ''broadcast'' or are meant only to refer back to ''or otherwise transmitted''. If the provision is intended only to refer back to ''or otherwise transmitted'', it seems to be contemplating a means of broadcasting that is not carried out over an electronic communications network. If that is the case, the content board's remit becomes ambiguous. It needs to be clarified. 
 The same issue arises in respect of the corresponding words in clause 13(3)(a). Clause 28 gives a detailed definition of an electronic communications network and describes it as 
''a transmission system for the conveyance . . . of signals of any description''.
 That appears to include all broadcasting. There may be ambiguity, but it may not matter either way because the same conclusion would be reached. However, the matter has been sufficiently exercising the lawyers at BSkyB and, as they are so frequently on the ball, it would be sensible for us to tease out from the Minister the meaning of the provision.

Richard Allan: I want to pick up on amendment No. 36 and approach it from a different angle. The existing wording and the suggested change of wording refer to the definition of what the content board regulates. Now is the most appropriate time to tease out details of the scope of the content regulation, especially whether it covers the internet. The implication of ''electronic communications network'' is that the internet would be covered. In response to a point that was made about the previous group of amendments, the Minister said that it would not be. I assume that he was referring to the general duties of Ofcom under clause 3, which refer to it securing
 standards in respect of ''television and radio services''. If we did not have the restriction in respect of general duties, the various forms of wording for ''otherwise transmitted'' could be taken as extending the duties to the internet.
 I come to a point that needs to be considered seriously. I cannot find a definition of ''television and radio services'' in the Bill. That may not be essential, but it may become so. If the Government are successful, for example, in their broadband strategy and 5 million cable customers receive televisual output—or something that looks like a television programme—on their television set, how will we distinguish what is defined as internet and outside, and what is defined as broadcasting and, therefore, inside? It is important to define ''television''. Do the Government mean television as we currently understand it, in that it runs off a large transmitter on a hill, a satellite or a particular type of technology over cables? Reference was made earlier to the fact that community radio probably now uses the internet as radio more than it uses broadcast radio, because it is easier. We need a definition of what constitutes television or radio. Given the general duties under clause 3 along with the broad provision under clause 12 that refers to 
''otherwise transmitted by . . . electronic communications networks'',
 the content board may, by accident rather than by design, drift into such matters. It will be looking at its legal powers and receive complaints. Those complaints may well refer to something that has not historically been defined as television or radio. Who ultimately will arbitrate on whether such things should be regulated? That is a significant point. 
 If we are serious about the Bill surviving over the years, we should decide whether we need a clearer definition of what is inside and what is outside the television and radio sphere. Otherwise, we might simply rely on the fact that we have a current understanding of the one sphere, and a sort of understanding of the other—it is something to do with internet protocol packets, and involves websites and so on. Those spheres will increasingly converge. We can try to distinguish between the two at the moment, but I suspect that it will become harder to do so.

Simon Thomas: The hon. Gentleman makes an important point. He says that the two spheres will increasingly converge, but surely they have converged already. Interactive digital television, for example, helps the viewer to use an online service, to join in online interaction or to vote online on the topic of the day. We are told that online video on demand, which is already being delivered via cable, is outside the scope of the Bill. However, the hon. Gentleman's point makes us think again about those issues, and I hope that he will get the answer that he expects from the Minister.

Richard Allan: The hon. Gentleman reinforces my point. Someone using the Sky television service, for example, will, when looking at the television picture, presumably be within the gamut of the normal content regulation. That person might click on to Sky Active,
 which is Teletext-serviced and is in some way regarded as television. If, through one of the online services, that person hooks on to something else, they may find equally or more offensive content, but at some point they will cross the boundary. The question is whether it is best to leave the boundary entirely vague in relation to technical matters, or to define the boundary more clearly. I see the sense in both strategies.
 Our problem is that clause 12 does not clearly define the boundaries; it is not quite all encompassing. My understanding—the Minister may correct me—is that, on the internet point, we might be told that the Bill deals with television and radio regulation, and that it is therefore the definition of those that is important.

Andrew Lansley: There will be a lot of discussion on what constitutes the internet as distinct from broadcast services, and there are many subsequent definitions in the Bill. However, surely the content board can have functions conferred on it by Ofcom. If Ofcom is to have regulatory functions in relation to internet content, as it may well do—we shall discuss that later—that content can be referred to the content board. Clause 12 is not the place in the Bill to define the functions of Ofcom.

Richard Allan: I am grateful to the hon. Gentleman for his interpretation. We tried earlier to define, in broad terms, the functions of Ofcom, and our discussion is leading on from that. If clause 12 passes as it is, and hon. Members have concerns about Ofcom being involved in internet content regulation, it may be too late to do anything about it later. I did not expect such a broad definition under clause 12. The clause would be an opportunity to limit further the definitions of the content board, if that were the intention.
 The point was made that by having such a broad definition in clause 12, we have left the matter open and can later broaden the scope of the content board. I had assurances from the Minister that the scope was to be quite limited. That is my point about the broad definition, 
''otherwise transmitted by means of electronic communications networks''.
 I accept that we will come back to the issue later, but it was worth making the point now, because if we approve clause 12 unamended, we will create a wide definition, and there is a valid political view that it would be better to create a narrow definition of what the content board does while we are defining the content board, rather than later in the Bill.

Kim Howells: I suspected when I read the clause—about midnight some three days ago—that when we reached the amendments under discussion, a number of anoraks would start to unfurl themselves. I know that the hon. Member for Sheffield, Hallam would not be seen dead in an anorak.
 These provisions relate to the functions of the content board and therefore to the content of anything that is broadcast or conveyed by means of an electronic communications network. They also relate to Ofcom's consumer research function as it relates to content. As we have seen, Ofcom's interest in content, in relation to media literacy, extends beyond broadcasting to other media, including the internet. 
 However, it does not extend to the regulation of internet content. I hope that that clarifies things a little. 
 I know that we are running short of time, Mr. Gale, but I want to draw the Committee's attention to part of clause 390, beginning at line 41 of page 332, which states: 
'' 'television and radio services' means—
(a) programme services apart from those provided by the BBC; and
(b) services provided by the BBC in relation to which OFCOM have functions;
'television programme' means any programme (with or without sounds) which—
(a) is produced wholly or partly to be seen on television; and
(b) consists of moving or still images or of legible text or of a combination of those things''.
 As the hon. Member for Sheffield, Hallam says, life is more complicated than that. He asked the Committee about whether we should leave the frontier vague or whether we should make it precise. My answer is that, at this stage, we should leave it as vague as possible. 
 I repeat that the content board will not regulate internet content. I suppose that we are asking for a content board that is, in a way, ignorant of the existence of the internet. However, I hope that I have explained things and have answered the specific question from the hon. Member for Lichfield. The content board will research, and advise on, matters relating to the internet and to media literacy. However, the board will be fully part of Ofcom, so it can have no regulatory functions or powers that Ofcom does not have. The Bill does not provide for Ofcom to have any regulatory powers over internet content; therefore, the content board cannot have such powers either.

Simon Thomas: I am grateful to the Minister for that explanation. However, one thing still concerns me—the availability of what we would call television and radio programmes made by a service provider that is otherwise regulated by Ofcom but broadcast on the internet. Already programmes may be broadcast first on satellite and then on terrestrial television, in order to encourage people to move to satellite. What will happen if technology moves on in the next five or 10 years, broadband becomes much more available, and broadcasters broadcast their programmes on the internet first, before broadcasting on terrestrial? Would the content of such programmes be governed by the content board of Ofcom?

Kim Howells: That is the best reason I have heard so far for leaving the frontiers very vague. I expect that the House will have to examine such situations, which, in the context of this Bill, are outside the remit of Ofcom. I therefore ask the hon. Member for Ryedale to withdraw his amendment.

John Greenway: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 12 ordered to stand part of the Bill.

Clause 13 - Consumer research

John Whittingdale: I beg to move amendment No. 38 in
clause 13, page 13, line 44, leave out from 'network' to end of line 47.
 Clause 13 deals with consumer research under the heading: 
''Functions for the protection of consumers''.
 The Minister has spoken about clause 390, which contains definitions. It is clear that, in this case, the definition of ''consumers'' goes a long way beyond what most people would imagine ''consumers'' to mean. In particular, the definition includes business customers. If one looks at the criteria on which research carried out by Ofcom will be based, it will become pretty clear that several criteria affect business customers but not domestic customers. Is the Minister confident that a requirement to respond to research requests from Ofcom will not place an undue burden on businesses? 
 The amendment would clarify a point that is accepted by the ITC and Oftel: television broadcasts are not services that are associated with electronic communications services. Broadcasters do not provide any form of electronic communications services to their viewers and their broadcasts are regulated only under part 3. Provisions in the Bill that indicate that television broadcasts are delivered to viewers as services associated with an electronic communications service must be changed to reflect that. 
 Subsection (4) states: 
''OFCOM must make arrangements for ascertaining . . . the state of public opinion from time to time concerning programmes included in television and radio services''.
 There is a suggestion that that might include video on-demand services. Will the Minister confirm that video on-demand services are excluded from any regulation under part 3?

Kim Howells: Consumers are at the heart of Ofcom's remit and decisions on what will further their interest will need to be underpinned by proper research. The amendment has no effect. Subsection (4) allows Ofcom to carry out research on public opinion concerning programmes included in television and radio services and on the effect of any material published by means of electronic media.
 The hon. Gentleman is right to raise the issue because it allows me to state clearly that businesses should not be burdened with endless requests from Ofcom for information to further its research. I clarify that that is not the intention of the Bill. I hope that Ofcom would see itself as a partner with businesses to work out proper systems for obtaining key information that will help its work. Other sectors do that very well at the moment. 
 The hon. Gentleman will know that broadcasting and media industries have sophisticated technologies and systems for gathering information such as, for example, numbers of viewers. Such information is 
 useful for companies and those of us who are interested. 
 We want Ofcom to be able to find out what public opinion is, if that is relevant to its remit. It will use that knowledge to inform its decision-making process. Subsection (1) places Ofcom under a duty to make arrangements for ascertaining public opinion on how electronic communications networks and services are delivered and on the way in which associated facilities, such as electronic programme guides, are made available. Ofcom must also ascertain the state of public opinion on television and radio programmes. 
 Ofcom has a wide range of functions under part 3 relating to public service broadcasting, which we will discuss in due course. It cannot hope to fulfil its functions without an appreciation of the types of programmes that the public want to be included in television and radio services. Subsections (4) and (5) place Ofcom under a duty to do that. 
 The duties to carry out research are in addition to the power of the consumer panel to carry out research. Nothing will restrict Ofcom from making any arrangements that it considers to be incidental or conducive to the carrying out of its functions. 
 The hon. Gentleman raised a question on electronic services. His point is technically correct but I am not sure that I follow the logic of his further assertion. I know that the matter has been of great interest to BSkyB, among others. Perhaps we can discuss it later and get greater clarity. I hope that the hon. Gentleman will withdraw his amendment.

John Whittingdale: I am grateful to the Minister for his comments, and especially for his assurance that the research conducted by Ofcom will not result in businesses being deluged by a tidal wave of requests for information.
 The Minister suggested that we might return to the issues raised by the amendment, and I look forward to doing that. In the interests of brevity, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 13 ordered to stand part of the Bill.

Clause 14 - Duty to publish and take account of research

Question proposed, That the clause stand part of the Bill.

Michael Fabricant: I welcome clause 14, as it encourages a spirit of openness, but there are a couple of points about which I seek clarification.
 The Committee has dealt with clause 1(5)(b). That stated that there is an obligation on Ofcom to 
''promote the carrying out of such research and development by others, or otherwise to arrange for it to be carried out by others''.
 That research and development will mainly be in engineering sectors. 
 Clause 14 does not explicitly mention this, but can the Minister confirm that subsection 1(b), which states 
''to consider and, to such extent as they think fit, to take account of the results of such research''
 does not just include the research detailed in clause 13, and that if research is undertaken by Ofcom—or someone it has contracted, as it is empowered to do under clause 1—it will publish that information under clause 14? 
 Subsections (3) and (4) contain sensible provisions to do with issues that should remain confidential. However, do they fully comply with the Freedom of Information Act 2000?

Kim Howells: I am confident that they do comply with that Act. We were very careful about this matter.
 I welcome the hon. Gentleman's point that there are times when there will be a need for confidentiality, and one of the best things about sectoral regulators is that they have managed to do that successfully. 
 We want Ofcom to be as transparent as possible in the way that it operates, and clause 14 is part of our commitment to that. Placing Ofcom under a duty to publish the results of any research carried out by it or on its behalf under clause 13 ensures that all interested parties will be able to consider the same information to which Ofcom has access. I have to disappoint the hon. Gentleman by reiterating that that is limited to clause 13 so far as this part of the Bill is concerned, with the proviso that confidentiality will be protected—clause 14 (2), (3) and (4) prevent the publication of anything confidential.

Michael Fabricant: I am grateful to the Minister for his clarification on clauses 14 and 13. I ask him to think about whether there might be a relevant place later in the Bill for a Government amendment saying that broadcasting research will be published as it is at present by the ITC and the Radio Authority.

Kim Howells: Yes, I can give the hon. Gentleman that assurance.
 Question put and agreed to. 
 Clause 14 ordered to stand part of the Bill.

Clause 15 - Consumer consultation

Andrew Robathan: I beg to move amendment No. 39, in
clause 15, page 15, line 31, leave out from 'and' to end of line 32 and insert 'consumers and small business consumers in relation to such of the following matters as are relevant to either of those classes of consumers—'.

Roger Gale: With this it will be convenient to take the following:
 Amendment No. 179, in 
clause 15, page 15, line 32, leave out from 'to' to the end of line 27 on page 16 and insert 'any aspect of OFCOM's duties and the operational effectiveness of OFCOM in respect of delivering those duties to further the interests of consumers and citizens.'.
 Amendment No. 198, in 
clause 15, page 15, line 41, leave out 'financial and other'.
 Amendment No. 40, in 
clause 15, page 15, line 41, leave out 'such services or facilities' and insert 'the services or facilities mentioned in subsection (4)'.
 Amendment No. 41, in 
clause 15, page 16, line 20, leave out 'or of an electronic programme guide'.
 Amendment No. 42, in 
clause 15, page 16, line 31, at end insert 'nor the terms on which any such content is supplied'.
 Amendment No. 180, in 
clause 15, page 17, line 8, leave out subsection (9).

Andrew Robathan: As you will not wish to have a clause stand part debate, Mr. Gale, I would like to make some general comments on this clause dealing with consumer consultation and the consumer panel.
 The clause follows on, to some extent, from clause 13 and we find that its remit is considerably wider that it might appear, as the definition of a consumer includes small business customers. We are somewhat concerned about services and facilities that are referred to in clause 15(1)(a). The Minister talked about giving Ofcom a broad remit, but will he provide some examples of what exactly those services and facilities would comprise? Does he think that they are limited? 
 On amendment No. 39, we think that consumer panel advice should be required only in appropriate cases. The clause requires the consumer panel to provide advice regarding the provision of certain services to domestic customers, but the nature of the service means that it would not be provided at that level. Under the Bill, the consumer panel would give advice regarding the interests of domestic and small business consumers on various matters that could not always apply to domestic consumers. For example, it is difficult to see how an electronic communications network could be provided to a domestic consumer, as is stated in 15(3)(a), line 33. We need clarification on whether the provisions are intended to apply only to business users. There is a lack of clarity in the Bill about what services can be provided to domestic consumers. For example, in the context of digital television, it is clear that associated facilities are not provided at retail level to domestic consumers. 
 Amendment No. 41 relates to electronic programme guides, which are regulated at the wholesale level. An EPG service is provided to a broadcaster that wishes to list its channel, not to domestic consumers. It is hard to understand how an EPG could be provided to domestic users as a service under the Bill, other than as a broadcast service falling under part 3. In that case, it is a contents service and ought to be excluded from the ambit of the consumer panel by virtue of subsection (5). We ask, therefore, for references to EPGs in paragraph (4)(d) to be deleted. 
 On amendment no. 42, we are concerned that the panel's remit is wider than was intended and that it may encompass the pricing and packaging of pay TV services that is delivered through satellite and digital terrestrial television, but would exclude those that are provided by cable. It appears that in subsection (4) the consumer panel would cover the retail provision of pay TV services—services provided over an electronic communications network—in terms of a contract between the provider and the consumer. That would, however, exclude the provision of free-to-air services. It is understood by the ITC and Oftel that there is no intention to regulate the retail pricing and packaging 
 of satellite and DTT pay TV services under part 2 or part 3 of the Bill. That would be similar to the retailing of pay TV services by cable operators, which is not regulated. 
 The provision of content by a broadcaster is excluded from the scope of the consumer panel by subsection (5), neither would the provision of a broadcast signal to domestic customers fall into the ambit of the consumer panel, since that is not an electronic communications service. I understand that both the ITC and Oftel have confirmed that.

Chris Bryant: Cable television is.

Andrew Robathan: Yes, it is—[Interruption.]

Chris Bryant: It is not a broadcast service.

Andrew Robathan: No, but it is specifically excluded.
 Subsection (5) currently removes matters of content from the panel's ambit, but not the retail terms—pricing and packaging—through which such content may be provided. That subsection should be amended to exclude the regulation of retail terms for pay TV from the panel's ambit.

Simon Thomas: I speak to amendments Nos. 179 and 180. I freely confess that they are probing amendments, and I want to hear the Minister's reply to them.
 I start from the central premise that the consumer panel is excluded from dealing with content. I accept that as part of the Bill's infrastructure, but it therefore strikes me as strange that clause 15 sets out in such great detail what the consumer panel is supposed to look at. If the consumer panel is to do its job properly in the name of consumers, then surely apart from content, it should be able to roam across the range of issues that affect consumers under the aegis of Ofcom. 
 I have therefore suggested that rather than set out in detail things that could be done in memorandums of understanding between Ofcom and the consumer panel, it would be better to refer back to the overarching aim of Ofcom, set out in clause 3, and simply seek to deliver 
''those duties to further the interest of consumers'',
 as the central remit of the consumer panel. Of course, content is excluded. That would be a much neater and more functional way of achieving the aim and would allow Ofcom and the consumer panel to come to a much better memorandum of understanding. Setting out great detail in the Bill seems to me to be destroying the consumer panel before it has started. 
 With amendment No. 180, I am concerned that the provision to allow Ofcom to deliver information to the consumer panel and 
''provide the Panel with all such further information as the Panel may require''
 contains a huge caveat: that Ofcom can reasonably refuse to disclose to the panel any other matters that it thinks are relevant. That huge caveat allows Ofcom to withhold anything from the consumer panel simply because it does not want to give it. I am not saying that Ofcom would want to do that, but I should like to hear 
 the Minister explain how it will work in practice, and why such a wide-ranging power to withhold information from the consumer panel is here given to Ofcom.

Brian White: I was going to respond to the hon. Member for Blaby but, for the sake of brevity, I shall not, as my hon. Friend the Member for Rhondda has pointed out one or two of the inconsistencies there.
 The consumer panel will be giving various types of advice. I maintain that Ofcom's key role will be its economic regulator function—looking at issues to do with such things as RPI minus X, which are complex and require detailed knowledge and a skills set within Ofcom. I am concerned that if the consumer panel advises on those issues, it will have to have access to resources of an equal skill value, so will be in danger of becoming a shadow economic regulator. I am sure that that is not what the Minister wants. This is a probing amendment, looking for clarification that the consumer panel's whole point is not to become a shadow economic regulator, second-guessing what Ofcom is doing. Its advice under clause 15 should not undermine the board's activities and consumers should not be able to go to it to get a second opinion.

Richard Allan: I have only a couple of brief questions, on the scope of the clause, because I want to leave the Minister time to reply.
 The clause mentions 
''consumers in the markets for apparatus''
 relating to services regulated by Ofcom. Will that be extended to people using apparatus to connect to the internet? We have moved on from the content debate but, clearly, Ofcom, in absorbing Oftel's functions, has regulatory functions relating to internet provision, so one possible reading of that paragraph would be that that gave it such a function. 
 My second point is on the interpretation of 
''directories capable of being used in connection with the use of an electronic communications network''.
 Again, does that relate to internet directory services? That is increasingly important because, certainly for the younger generation, if something is not on Google, it does not exist. Internet directories are a real issue to be raised here and looking at the consumers of internet directory services would be a major departure.

Kim Howells: I shall try to deal briefly with each amendment.
 In amendment No. 41, the hon. Member for Blaby seems to seek to remove electronic programme guides from the panel's remit. EPGs are the tool used for gaining access to and information about programmes in the multichannel digital environment. They are something new with which people moving to digital will have to cope. For some consumers, the change will be difficult to make. Such a vital tool is of major importance to consumers, and it is right that the panel will be able to consider them. EPGs are content services, but as they are the facility through which viewers will access the digital content on their TVs, there are fundamental issues about access and choice—an important factor to bear in mind. The hon. Member for Blaby will correct me if I 
 misunderstood his question, but I believe that he asked me what services and facilities were covered by clause 15(1)(1).

Andrew Robathan: I asked for an explanation.

Kim Howells: Ofcom regulates all these services and facilities. In particular, it regulates electronic communications services, as defined in clause 28, and facilities associated with networks and services, also as defined in clause 28. As the hon. Gentleman knows, we will debate that on Tuesday morning.
 The hon. Member for Ceredigion, in amendment No. 179, returned to a subject that he addressed, I believe, on Tuesday, when he talked about giving the consumer panel more teeth. The amendment would create the consumer panel as a sort of watchdog for Ofcom. As I said, this is not the role that we want to create for the panel, the purpose of which is to be the independent voice of consumers for Ofcom. 
 As I said, and as my hon. Friend the Member for Milton Keynes, North-East put it in his question—he tempts me to use the phrase that I used previously—it should be a critical friend to Ofcom. It will work closely with Ofcom and give it expert advice. To do that effectively, the panel must have a clear and focused remit. For that reason, we have ring-fenced the panel's work so that it is concentrated on areas of real concern to consumers. Issues of wider public interest, such as pluralism, freedom of speech, offence and social harm are hugely important, but we would be doing consumers and citizens a disservice if we lumped all those issues together and appointed one panel to deal with them all. 
 In amendment No. 198, my hon. Friend the Member for Milton Keynes, North-East seeks to remove the reference to ''financial and other terms''. However, that would make no difference to the panel's ability to consider price and other financial terms, such as hire purchase agreements, that will affect consumers. Some operators expressed the concern that the panel should not give advice on whether prices are fair. It would make no sense for the panel to be drawn into any exhaustive analysis of the relationship to costs or rates of return, which would require substantial economic expertise. In so far as that analysis is required under the regulatory regime, it will be for Ofcom to seek such advice elsewhere. In many instances, it will be a task for the Director General of Fair Trading. 
 The hon. Member for Sheffield, Hallam asked whether the apparatus extends to internet apparatus. The answer is; only to the extent that the apparatus is used as a means of connecting to the network that carries the internet to consumers. I hope that that makes the matter clear.

Andrew Robathan: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 15 ordered to stand part of the Bill.

Clause 16 - Membership etc. of the Consumer panel

Andrew Lansley: I beg to move amendment No. 8, in
clause 16, page 17, line 41, leave out from 'by' to end of line 44 and insert 'the Secretary of State, acting with the advice of OFCOM, and shall comprise a Chairman and such other members as the Secretary of State may determine.'

Roger Gale: With this will be convenient to take the following Amendment No. 181, in
clause 16, page 17, line 41, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 182, in 
clause 16, page 17, line 42, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 183, in 
clause 16, page 17, line 43, leave out subsection (2). 
Amendment No. 10, in
clause 16, page 17, line 45, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 11, in 
clause 16, page 18, line 6, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 12, in 
clause 16, page 18, line 16, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 185, in 
clause 16, page 18, line 29, leave out 'OFCOM with the approval of'.
 Amendment No. 187, in 
clause 16, page 18, line 30, leave out 'OFCOM' and insert 'the Secretary of State'.
 Amendment No. 188, in 
clause 16, page 18, line 31, leave out 'OFCOM' and insert 'the Secretary of State'.

Andrew Lansley: I will be brief. The purpose of the amendment is to secure the independence of the consumer panel by making the Secretary of State, acting with the advice of Ofcom, responsible for appointments to it, rather than giving simply a back-stop power to the Secretary of State to block appointments made by Ofcom. The initiative would be with the Secretary of State and the independence of the consumer panel would be better secured.

Kim Howells: I put it to the Committee that the amendment should not be made.

Hon. Members: Good answer!

Roger Gale: Order.
 It being Five o'clock, The Chairman, proceeded, pursuant to Sessional Order D relating to Programming [28 June 2001 and 29 October 2002] and the Order of the Committee [10 December 2002], as amended [this day], to put forthwith the Question already proposed from the Chair.

Andrew Lansley: On a point of order, Mr. Gale. Perhaps you could advise me on the procedure. It is my wish, and it might be the wish of other members of the Committee, to vote against clause 18. Will we be able to do that?

Roger Gale: Let me dispose of the immediate business first. I am required to put the amendment that
 has been moved. The Committee must vote on it; it cannot be withdrawn.
 Question put, That the amendment be made:—
The Committee divided: Ayes 9, Noes 11.

Question accordingly negatived.

Roger Gale: I will now return to the hon. Gentleman's point of order. Under Sessional Order D of 28 June 2001, as renewed on 29 October 2002, I am required to put all remaining Questions forthwith. That does not permit separate Divisions on individual clauses. Hon. Members who wish to vote against any particular clause, now grouped together, between clauses 16 to 26, schedule 2 and clause 27 have two choices: either to vote against the entire package, or to let the entire package go through. I appreciate that that is a matter of concern to hon. Members on both sides of the House and I will report that fact to the Chairman of Ways and Means, but, as the Standing Orders of the House currently are, I have no other choice.
 The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clauses 16 to 26 ordered to stand part of the Bill. 
 Schedule 2 agreed to. 
 Clause 27 ordered to stand part of the Bill.

Roger Gale: Before I call Mr. Murphy to move the Adjournment, I should like to place one other issue on the record. The Chairman has a number of duties: to protect the interests of the Back Bench; to ensure that the business of the House is properly debated; and of course to implement the votes of the House as determined after Second Reading.
 The inevitable consequence of the decisions that were taken by the Programming Sub-Committee this morning are that, on Tuesday next week, 50 amendments and 40 clauses must be debated within two and a half hours. Members of the Committee may consider that to be satisfactory and that the matters for consideration are such that no more time will be needed. However, I am disposed to recall the Programming Sub-Committee at 10 o'clock on Tuesday morning in this Room immediately prior to our sitting to consider the matter, once the usual channels have had the opportunity to discuss it. I shall leave it to the Government Chief Whip to inform me whether he wishes the Programming Sub-Committee to sit again. 
 That being so, I should like to say to members of the Committee, because it may have another knock-on effect, that I have already said to Mr. Atkinson that I am willing to take the Chair between 8 and 10 pm on Tuesday evening to progress business and to bring the running order back on schedule. However, that must initially be a matter for discussion by the usual channels. 
 Further consideration adjourned.—[Mr. Jim Murphy.] 
 Adjourned accordingly at five minutes past Five o'clock till Tuesday 17 December at half-past Ten o'clock.